Delhi District Court
Shikha Mitra Chaudhary vs Prasanjit Chandra on 30 September, 2024
IN THE COURT OF SH. HARJYOT SINGH BHALLA
DISTRICT JUDGE-05, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
CS DJ No. 208299/2016
SHIKHA MITRA CHAUDHARY Vs. PRASANJIT CHANDRA
CNR No. DLST01-001915-2016
&
CS DJ 123/2017
PRASANJIT CHANDRA Vs. SHIKHA MITRA CHOWDHARY
CNR No. DLST01-001126-2017
Shikha Mitra Chowdhary
W/o Sh. Somen Mitra
R/o Flat No. A-1,
Surya Apartment,
3, Lower Rowdon Street,
Kolkotta-20,
............ Plaintiff
Vs.
Prasanjit Chandra
S/o Sh. Nirmal Chandra
Presently residing at Flat No. C-4/6 UGF
Saidulajab Extension,
IGNOU Road, Delhi-110030
.......... Defendant
Date of Institution of Suit : 13.03.2015
Date of Institution of Counter Claim : 03.02.2017
Date of judgment : 30.09.2024
JUDGMENT (ORAL)
1. Vide this judgment, I shall dispose of the suit for possession, permanent injunction and recovery of damages/ usage CS DJ No. 8299/2016 & CS DJ No. 123/2017 Page 1 of 21 charges alongwith pendente lite and future mesne profits with interest, filed by the plaintiff and the counter claim filed by the defendant.
2. The brief facts, as culled out from the plaint, are as follows:
1. That the Plaintiff is the owner of the property bearing no. C- 4/6 UGF Saidulajab Extension, IGNOU Road, Delhi- 110030, having covered area 130 Sq. yards approx.
consisting of three bedrooms, one drawing- cum- dining, one kitchen, two toilets-cum- bathrooms and balcony with common car parking for one car and other common and easement rights (hereinafter referred to as the suit property).
2. That the defendant was initially a permissive user with respect to the suit property by the Plaintiff, who is at present in unauthorized occupation of the suit property.
3. That the defendant and Plaintiff belong to a same community and the husband of the Plaintiff met the defendant through one common friend. Since the defendant was in dire need of residence and the flat of the Plaintiff i.e. the suit property was lying vacant, the plaintiff and her husband, in the month of December 2011, allowed the defendant to reside in the suit property along with his family free of cost, on the reciprocating terms that the defendant will look after the suit property of and shall vacate the same after six months.
4. That after six months, when the defendant was asked to vacate the suit property, he took a plea of his father's illness and requested the plaintiff to allow him to stay in the suit property so that treatment may continue without any trouble. On humanitarian grounds the plaintiff allowed the defendant to stay for a further period of one year free of CS DJ No. 8299/2016 & CS DJ No. 123/2017 Page 2 of 21 cost.
5. That in the month of August 2013, when the plaintiff came to Delhi and requested the defendant to vacate the property as she required the same for her personal use, she was shocked to receive a negative reply from the defendant and his father. The father of the defendant did not even allow the plaintiff to enter into her property and threatened that they will not vacate the property ever.
6. That the plaintiff approached the Police and lodged a complaint but no action was taken by police alleging that it is a civil dispute. The defendant claimed himself to be the tenant of the plaintiff in the suit property, though his status is of unauthorized occupant. Thereafter the plaintiff made several requests to the defendant to vacate the suit property, but every time the requests of the plaintiff were turned down by the defendant.
7. That left with no option, and in order to avoid any legal implications in future the plaintiff accepted the defendant to be the tenant in the suit property, and since she was no longer interested in the continuing the tenancy of the defendant, a legal notice for termination of the above said tenancy dated 02/01/2015 was served upon the defendant.
8. That by way of the said legal notice the Plaintiff also called upon the defendant to pay Rs. 20000/- per month towards the market rent of the suit premises from August 2013 i.e. when he refused to vacate the suit property, till the date of peaceful handing over the premises to the defendant. In this manner the defendant is liable to pay Rs. 340000/- till the filing of the present suit.
9. That despite the termination of tenancy, the defendant failed to vacate the suit property within A the notice period and instead sent a reply notice dated 21/01/2015 on false and CS DJ No. 8299/2016 & CS DJ No. 123/2017 Page 3 of 21 frivolous grounds wherein he alleged that in October 2012 he entered into an oral agreement to sell with the Plaintiff with respect to the Suit Property for Rs. 32 Lakhs and paid Rs.15 Lakhs in cash to the husband of the Plaintiff as earnest money. He alleged that after that payment he had acquired a valuable interest in the property and he is no more a tenant in the suit property. Hence this suit.
10. That though the defendants are aware that they are only unauthorized occupants in the suit property and have no right or authority over the suit property, yet the defendant is not vacating the suit property, despite the repeated requests of the Plaintiff and raising frivolous claims over the suit property.
11. That the Plaintiff does not visit Delhi very often, taking advantage of this fact, the defendant is trying to usurp the property of the Plaintiff. The defendant is threatening the Plaintiff that he will induct third parties in the suit property and make it impossible for the plaintiff to recover the possession of the suit property from him. The sole motive of the defendant is probably to extract money from the plaintiff by creating such nuisance.
12. That the cause of action accrued in favor of the plaintiff and against the defendants for filing of the present suit arose in August 2013 when the plaintiff requested the defendant to vacate the property and he refused to vacate the suit property. The cause of action again arose on 02/01/2015 when legal notice for termination of the tenancy was served upon the defendant and the he failed to vacate the suit property within the notice period. The cause of action further arose on 21/01/2015 when the defendant replied to the Legal Notice sent by the Plaintiff. The cause of action is still subsisting, as the defendant despite requests of the Plaintiff is not vacating the suit property.
CS DJ No. 8299/2016 & CS DJ No. 123/2017 Page 4 of 213. On the said averments, the plaintiff has prayed that the court may be pleased to:
a. Pass decree of possession of suit property in favour of plaintiff and against the defendant thereby directing the defendant to handover the vacant & peaceful possession of the suit property to the plaintiff.
b. Pass a decree of permanent injunction thereby restraining the defendant and their agents, relatives and accomplices from inducting any third party in the suit property. c. Pass decree of recovery of Rs.340000/- in favour of the plaintiff and against the defendant against the usage and occupation charges from August 2013 till the date of filing of the present suit.
d. Pass a decree in favour of the plaintiff and against the defendant with respect to the pendent-lite and future usage and occupation charges along with interest 12% Ρ.Α.
e. Pass any other or further order(s) as this Hon'ble court may deem fit and proper in the facts and circumstances of the case.
4. Summons were sent to defendant, which was duly served on 25.04.2015. Defendant has filed his Written Statement on record. The defence taken by the defendant in the WS are as under:
1. That the present suit filed by the plaintiff deserves to be dismissed out rightly as the same is barred under the provisions of Section 50 of the Delhi Rent Control Act. However, in the entire suit the plaintiff has failed to mention as to what was the agreed rate of tenancy or rent and as to since when the tenancy of the defendant commenced.
2. It is submitted that the pleadings of the plaintiff are self contradictory and the same are concocted in order to somehow wriggle out of CS DJ No. 8299/2016 & CS DJ No. 123/2017 Page 5 of 21 the statutory bar placed by the Section 50 of the Delhi Rent Control Act. It is further submitted that the plaintiff has not mentioned as to whether the defendant has ever paid the rent as alleged by her in the plaint.
3. That in Para 7 of the plaint, the plaintiff further acknowledges the fact that she sent a notice dated 02/01/15 to the defendant wherein for the first time demanded the alleged rent from the defendant.
4. In this regard, it shall be pertinent to mention that though the plaintiff in Para 9 of its plaint admitted that a reply dated 21/01/2015 was received by her from the defendant, however, deliberately the plaintiff did not mention the fact that in the reply to this legal notice of the plaintiff, the defendant has categorically informed and appraised her that he was a tenant under her on a monthly rent of Rs. 2000 per month since the year 2011 when the defendant got the possession of the suit premises from the plaintiff.
5. That it is further respectfully submitted that the suit of the plaintiff for possession is also barred by the provisions of Specific Relief Act as the plaintiff is not in possession of the premises and the plaintiff derives her title and ownership on the basis of the following documents.
a) General Power of Attorney dated 11/05/2010
b) Agreement to Sell dated 11/05/2010
c) Affidavit of Shri Satyawati Chawdhary dated 11/05/2010
d) Will of Shri Satyawati Chawdhary dated 11/05/2010
e) Possession letter executed by Shri Satyawati Chawdhary dated 11/05/2010
f) Receipt dated 11/05/2010
g) Special Power of Attorney dated 11/05/2010
h) Indemnity bond dated 11/05/2010 CS DJ No. 8299/2016 & CS DJ No. 123/2017 Page 6 of 21
6. It is submitted that all the above mentioned documents though they have been shown to be executed on 11/05/2010 however the same are apparently notarized in an illegal manner on 03/03/2011 and none of the notarisations of the said documents have been stamped appropriately in accordance with the law governing the notarial stamp fee.
7. That the General Power of Attorney executed by Shrimati Satyawati Chawdhary in favour of the plaintiff nowhere mentions as to the manner in which she derived the title to execute the said documents and the said documents nowhere reflect the manner in which the said Satyawati chawdhary became the owner of the suit premises and became entitled to execute a general power of attorney in favour of the plaintiff. As a matter of fact, the said documents has not been signed by the plaintiff and also bear the signatures of only one witness who is the husband of the executant. It is submitted that the General Power of Attorney has been executed on a stamp paper of Rs.50 and admittedly as per the General Power of Attorney nowhere mentions the sale consideration. However, Para 7 thereof reflects about the receipt of the consideration money.
8. The agreement to sell dated 11/05/10 relied upon by the plaintiff, is again executed on stamp paper of Rs. 50 and notarised on 3/03/2011 without any notarial stamp fee and again contains only one witness which is the husband of the executant while there are no signatures of the plaintiff., further the said agreement to sell nowhere reflects or throws light on the entitlement of the executant, Satyawati chawdhary to execute the said document. As per the said document the possession of the suit property was handed over to the plaintiff on the date of the CS DJ No. 8299/2016 & CS DJ No. 123/2017 Page 7 of 21 execution of the said document.
9. The will dated 11/05/2010 relied upon by the plaintiff, is also apparently a forged and fabricated document and the same has no value as it has not been executed in accordance with the provisions of the Hindu Succession Act as contrary to the provisions of the law the said will bears the signature of only one witness i.e. the husband of the executant, further the same also does the same bear the testimony of the attesting witness as to having signed the will at the instance of the testator. Even the said will fails to throw any light on the entitlement of the testator to bequeath the suit property.
10. In view of the above it is humbly submitted that under no circumstances the plaintiff can claim herself to be the legal owner of the suit property and cannot maintain the present suit for possession.
11. That in the year 2011 the defendant was planning to shift his residence and this context was searching for a suitable accommodation which was also cheap and at that point of time a property dealer met the defendant and showed him the suit property informing him that the same could be taken by him on a meagre rent of Rs. 2000/- only as the same was a stigmatised cursed property. Upon the inquiry of the defendant it was revealed that around October 2011 some female had committed suicide by jumping from the suit premises and that's how the property was stigmatised. The defendant duly asked and appraised his family members about the mishap that occurred in the premises and the fact that the suit property was available on a rent of Rs. 2000/- per month and after obtaining the consent of the family members, the defendant duly approached the said property dealer whose name the defendant does not remember and asked him to get the said property tenanted out to him.CS DJ No. 8299/2016 & CS DJ No. 123/2017 Page 8 of 21
12. That in the year 2011 the defendant was introduced to a person by the name of Babu (mobile no. 9818121101, 9093177600) who represented himself to be the manager of Mr. Somen Mitra, Member of Parliament (Congress). The said Mr. Babu informed the defendant that the suit premises belonged to the plaintiff who was the wife of Mr. Somen Mitra and who herself was an MLA of Trimool Congress. As the defendant and his family were also Bengali, a rapport soon developed between Mr. Babu and the defendant upon which Mr. Babu introduced the defendant to Mr. Somen Mitra also who agreed to lease out the said property to the defendant for the residence of the defendant and his family on behalf of his wife and accordingly the said Mr. Babu handed over the possession of the suit property to the defendant with an understanding that the lease agreement need not be executed immediately and the defendant and his family may stay in the property by paying Rs. 2000/- per month along with a security deposit of Rs. 12,000/- (six months rent in advance) and see that the property suits them and no mishap or unfortunate event occurs during this interval.
13. Thus, in the aforementioned manner, the defendant and his family members came to be in possession of the suit property and started paying the rent of Rs. 2000/- per month to the plaintiff through her husband via the medium of Mr. Babu from 2011 till around June 2012.
The defendant kept paying the rent of Rs. 2000 to the plaintiff through Mr. Babu and in this period the defendant developed good relations with the said persons, plaintiff, her husband, and Mr. Babu.
14. That the plaintiff and defendant having established good relations and the defendant having found the suit premises conducive, the plaintiff offered to sell the suit property to the CS DJ No. 8299/2016 & CS DJ No. 123/2017 Page 9 of 21 defendant and in this regard informed the defendant that they had purchased the suit premises for a sum of Rs. 22 lacs after paying a sum of Rs. 10 lacs in cash and Rs. 12 lacs by the way of cheque to the previous owner in the year 2010 and accordingly sought an appreciation of Rs. 10 lacs as the minimum over and above the price at which they purchased the suit premises and in this regard repeated negotiations took place between the parties.
15. That finally the plaintiff through Mr. Babu communicated to the defendant that she was prepared to transfer the suit premises in favour of the defendant for a total consideration of Rs. 32 lacs and demanded a sum of Rs. 15 lacs to be paid in cash and the remaining Rs. 17 lacs by the way of cheque or a demand draft around September 2012, upon which the defendant showed his inability to make the entire payment in one go and sought time till December 2012 to arrange part payment upon which Mr. Babu informed the defendant to make the initial payment of Rs. 15 lacs in cash on or before December 2012 and told the defendant that the balance payment of Rs. 17 lacs payable by cheque or a demand draft can be paid by him subsequently after an year or so as in this manner the plaintiff will receive an amount almost 50% of the sale consideration which is far in excess of the prevalent market procedure of paying 10% of the sale consideration.
16. That accordingly the defendant who was already having Rs. 3-4 lacs in cash arranged another sum of Rs. 11,00,000/- in cash through various sources and from his other family members over a period of 2 months from September to October 2012 and paid the entire sum of Rs. 15 lacs in cash to the husband of the plaintiff in October 2012.
17. That accordingly in the aforementioned CS DJ No. 8299/2016 & CS DJ No. 123/2017 Page 10 of 21 circumstances the defendant continued to pay the rent of Rs. 2000/- per month till October 2012, when the defendant paid a sum of Rs. 15,00,000/- in cash to the plaintiff in the manner stated above. It is submitted that at the time of receiving the payment Shri Somen Mitra, M.P asked the defendant to collect the receipt of the payment on a subsequent date as the plaintiff was not in Delhi. Furthermore, the defendant was assured that he need not pay any rent in future now and that he can pay the balance Rs. 17,00,000/- within a year by October 2013.
18. In view of the above, the defendant never paid any rent to the plaintiff after October 2012 and in order to win over the confidence of the defendant the plaintiff even got inserted the phone number of the defendant in the electricity bills of the suit premises.
19. That however for reasons best known to the plaintiff, the plaintiff, her husband and Mr. Babu went back on all the assurances given to the defendant and the family members and on 14th July 2013, Mr. Babu barged into the suit premises when the defendant was not at home and threatened the 73 years old father of the defendant and his sister and mother to ask the defendant to vacate the suit premises within 2 days otherwise the entire family would be killed. On the day of the incident i.e. 14th July 2013 Mr. Babu was also accompanied by a person unknown to the father of the defendant. That the father of the defendant soon therefore lodged a complaint in the local Neb Sarai police station on 15 July 2013 vide DD No. 37 B, that the plaintiff apparently having got to know about the complaint made by the father of the defendant herself lodged a false and frivolous counter complaint against the defendant on 16th September 2013 as is now revealed from the documents filed by the plaintiff along with the plaint.
CS DJ No. 8299/2016 & CS DJ No. 123/2017 Page 11 of 2120. That Mr. Babu along with 7-8 persons again came to the suit premises on 19th December 2013 and threatened the defendant's parents that in case the defendant failed to vacate the suit premises on or before Sunday evening they would kill the defendant and his family members. That again a complaint was preferred by the father of the defendant against the above incident that occurred on 19 th December 2013 in the Neb Sarai Police Station vide DD no. 37 B. That, constraint by the inaction of the police officials on any of the complaints given to them, the father of the defendant was compelled to initiate a criminal complaint against the plaintiff, her husband and the said Mr. Babu on 6th January 2014 wherein upon the orders of the Ld' Court, Action Taken Report was called for from the local police officials who again furnished a biased Action Taken Report before the Hon'ble Court. That the plaintiff apparently having understood that she would not be able to get the suit premises vacated by the defendant by violent means and the defendant being a protected tenant, the plaintiff sent a false and frivolous legal notice dated 2nd January 2015 to the defendant wherein she acknowledged the defendant to be a tenant under her without mentioning the date of the commencement of the tenancy or the rate of the rent. That, the defendant having received the said false and fabricated notice duly appraised the plaintiff of the true facts vide reply dated 21 st January 2015.
21. That it is humbly submitted that the defendant having already paid a sum of Rs. 15,00,000/- in cash to the plaintiffs husband in October 2012 in the presence of Devjit Chandra and Narender Roy, is duly filing his counter claim against the plaintiff for the specific performance of the oral agreement to sell pursuant to which the plaintiff received 15,00,000/- from the defendant and in the CS DJ No. 8299/2016 & CS DJ No. 123/2017 Page 12 of 21 alternatively for the refund of 15,00,000/- paid to the plaintiff after deducting the rent of the suit premises @ Rs.2000 per month effective from October 2012 till the date of refund along with interest @ 14% p.a. on the entire sum.
(emphasis supplied)
5. Vide order dated 19.05.2017, the following issues were framed by my Ld. Predecessor:
1. Whether the suit is barred by Section 50 of Delhi Rent Controller Act ? OPD.
2. Whether the plaintiff has not valued the suit property for the court fee and jurisdiction? OPD
3. Whether the defendant entered into an Agreement to Sell and paid Rs.15 lacs to the plaintiff? OPD
4. Whether the defendant/ counter claimant is entitled for decree of specific performance in respect of suit property or entitled to a decree of Rs.15 lacs, as prayed in the counter claim? OPD.
5. Whether the defendant is entitled for interest, if so at what rate and for which period? OPD.
6. Whether the plaintiff is entitled to the decree of possession, as prayed for? OPP
7. Whether the plaintiff is entitled for the relief of permanent injunction, as prayed for? OPP
8. Whether the plaintiff is entitled for damages and usage charges? OPP
9. Whether the plaintiff is entitled for pendentelite and future interest, if so at what rate and for which period? OPP.CS DJ No. 8299/2016 & CS DJ No. 123/2017 Page 13 of 21
10. Relief.
6. Plaintiff herself stepped into the witness box as PW-1. She tendered her evidence by way of affidavit Ex.PW1/A. She relied upon the following documents:
1. Photocopy of title documents including General Power of Attorney, Agreement to Sale, Affidavit, Will, possession letter, Receipt, Special Power of Attorney, Indemnity Bond all dated 11.05.2010 as Ex.PW1/1 (OSR) (Colly running 18 pages).
2. Electricity Bill as Mark-A.
3. Police complaint dated 16.09.2013 as Mark B
4. Legal notice alongwith postal receipt dated 02.01.2015 as Ex.PW1/2 (colly).
5. Legal notice alongwith postal receipt dated 21.01.2015 as Ex.PW1/3.
7. PW-1 was duly cross-examined. Vide order dated 14.03.2018 PE closed.
8. Thereafter the Defendant examined only one witness SI Ashok Kumar, as DW-1. While the DE was being recorded, an application under Order 12 Rule 6 of CPC was filed by the plaintiff. The application came to be decided vide detailed order dated 09.10.2023. The said order was based on the admission made by the defendant/counter claimant that he had entered into agreement to purchase the said property from the plaintiff and therefore, also making a counter claim for specific performance. That, earlier, he had been a tenant @ Rs.2,000/- per month, but eversince the advance amount was paid, he had stopped paying the rent.
9. My Ld. Predecessor concluded that the area in question did not fall within the purview of Delhi Rent Control Act CS DJ No. 8299/2016 & CS DJ No. 123/2017 Page 14 of 21 and the contention of the defendant that Section 50 of DRC was applicable was rejected. Although, the order does not specifically says, it is pertinent to note that defendant's own case was that after the oral agreement to sell, he had stopped paying the rent. The same is an admission on part of the defendant that the relationship of landlord and tenant seized from the date of the alleged oral agreement to sell.
10. Be that as it may, in view of the order passed on 19.10.2023, the possession of the property was handed over to the plaintiff under the supervision of the Local Commissioner in terms of a consent order dated 29.07.2024. Therefore, the only issues that remain to be decided in the present case are issue no.2, 3, 4, 5, 7, 8 and 9. Vide order dated 04.05.2024 the right of the defendant to lead evidence was closed.
11. My issue wise findings are as under:
12. Issue no.3 i.e. Whether the defendant entered into an Agreement to Sell and paid Rs.15 lacs to the plaintiff?, issue no.4 i.e. Whether the defendant/ counter claimant is entitled for decree of specific performance in respect of suit property or entitled to a decree of Rs.15 lacs, as prayed in the counter claim? And issue no.5 i.e. Whether the defendant is entitled for interest, if so at what rate and for which period? are connected and pertain to the counter claim filed by the defendant. Onus to prove these issues was on the defendant. It is a matter of record that the defendant never stepped into the witness box to lead any affirmative evidence. The only witness on behalf of the defendant was SI Ashok Kumar, PS Neb Sarai, who was called to prove the record pertaining to suicide of Ms. Ritu Sharma D/o Sh. Anand Prakash Sharma in the suit premises and the record pertaining to threats to the father of the CS DJ No. 8299/2016 & CS DJ No. 123/2017 Page 15 of 21 defendant.
13. Therefore, it has to be seen whether from the cross examination of the witness PW-1, the defendant could gather or extract any admission in support of his claim of an oral agreement, payments made in cash and relief for specific performance. It is evident that no such admission pertaining to the agreement to sell or payment of cash amount to the plaintiff could be extracted by the defendant. Plaintiff denied all suggestions that her husband has received any cash of Rs.15,00,000/-.
14. In these circumstances, I have no hesitation in holding that the defendant/counter-claimant has failed to discharge the onus to prove the aforesaid issues. These issues are accordingly decided against the defendant and in favour of the plaintiff.
15. That takes me to issue no. 7, 8, and 9. Onus to prove these issues was on the plaintiff.
16. The issue no.7 i.e.Whether the plaintiff is entitled for the relief of permanent injunction, as prayed for? pertains to decree of permanent injunction restraining the defendant from inducting any third party in the suit property. Since the defendant has already complied with the order/decree of possession passed against him on 19.10.2023, as modified by 04.05.2024, under the supervision of a Local Commissioner by way of a consent order, the issue no.7 has become otiose and need not be decided.
17. In any event, the plaintiffs have failed to show any attempt on part of the defendant to part with possession of the suit property. The injunction prayed for cannot be granted in these circumstances.
18. That takes me to issue no.8 i.e. Whether the plaintiff is entitled for damages and usage charges? and issue no.9 i.e.Whether CS DJ No. 8299/2016 & CS DJ No. 123/2017 Page 16 of 21 the plaintiff is entitled for pendentelite and future interest, if so at what rate and for which period? The plaintiff had sought recovery of Rs.3,40,000/- for the period August 2013 till 10.03.2015 when the plaint was presented. The same come out to about Rs.18,000/- per month approximately for 18 months. The pleadings in the present case are strange.
19. Firstly, the plaintiff claims that the defendant was inducted as a licencee without any fees.
20. Secondly, the plaintiff admits that in August 2013, she requested the defendant to vacate the property and the defendant refused to vacate the same. Left with no option, and in order to avoid any legal implications in future, the plaintiff accepted the defendant as a tenant in the suit property, and since she was no longer interested in continuing the tenancy of the defendant, a legal notice for termination of the above said tenancy dated 02.01.2015 was served upon the defendant.
21. Strangely, tenancy is created by the plaintiff, unilaterally, and then also terminated on 02.01.2015, calling upon the defendant to pay arrears of rent @ Rs.20,000/- per month. Not only is the averment unbelievable, in law it is unacceptable. A tenancy cannot be created, except by mutual agreement. Averments in the plaint, to that extent, are wanting.
22. The defendant is no less. He sets up a tenancy from the beginning of occupation @ Rs.2,000/- per month to claim protection of Delhi Rent Control Act and then sets up oral agreement to sell with cash payment of Rs.15,00,000/-. No document was filed by him to support either of his claim.
23. The evidence needs to be examined next. When the plaintiff was cross examined by the defendant on the rate of rent, CS DJ No. 8299/2016 & CS DJ No. 123/2017 Page 17 of 21 the following answers are given:
Cross examination of PW-1 dated 20.12.2017:
Q: I put it to you that you have filed this case stating the defendant to be your tenant and can you tell how much was the rent of the suit premises. What do you have to say?
Ans: The defendant was never inducted as a tenant in the suit property and it is not my case.
At this stage, the witness is confronted with the Para 9 of the plaint from point 'A' to 'A' where there is reference of termination of tenancy of the defendant and asked from which date the tenancy of the defendant in respect of suit property started. The defendant was never inducted as a tenant and I allowed him to reside in the suit property as he was belonging to same community as I am.
It is wrong to suggest that the defendant was paying monthly sum to my husband for the suit property.
...
It is wrong to suggest that the defendant was inducted as a tenant in the suit property in the year 2011 at a monthly rent of Rs. 2,000/- by my husband. I do not remember when I came to know of the complaint lodged by the father of the defendant in the Police Station Neb Sarai vide DD No. 37B which as per Para No. 7 of my affidavit, was dismissed as the court found no merit in the same. I do not know when the said complaint was dismissed.
Cross examination of PW-1 dated 14.03.2018:
It is wrong to suggest that I had, prior to this notice Ex.PW1/2, never asked the defendant to vacate the suit premises. It is wrong to suggest that the defendant was a tenant in the suit premises since beginning. It is wrong to suggest that though, I accepted the CS DJ No. 8299/2016 & CS DJ No. 123/2017 Page 18 of 21 tenancy of the defendant and Ex.PW1/2 but I deliberately did not admit/disclose the rate at which the defendant was inducted as a tenant. ...
It is correct that Sajid Rehman is still a common friend of me and my husband. It is wrong to suggest that defendant was inducted as a tenant at monthly rent of Rs.2000/- per month in the suit premises. It is wrong to suggest that I had sought payment of rent from the defendant in the year 2015. Vol. There was talk between me and my lawyer for asking the defendant to pay Rs.2,000/- per month for use and occupation of suit premises. It is a matter of record that in the Legal Notice Ex.PW1/2, my counsel has asked the defendant to pay the rent @ Rs.20,000/- per month for the suit premises. I do not know whether Rs.20,000/- per month was never the rent for the suit premises or any other property in the same vicinity.
24. From the aforesaid testimony, it can be said that the plaintiff failed to prove that a tenancy was created with a rent of Rs.20,000/- per month with mutual consent, as also, as to when it was created.
25. From the entire evidence, I am satisfied that the defendant also failed to prove that he was a tenant paying rent @ Rs.2,000/- per month. There is no evidence to prove the said fact.
26. Since both the parties have failed to prove any rental value of the transaction between them or that the defendant had paid any rent or agreed to pay any rent, and it was the case of the plaintiff that the defendant was inducted as a gratuitous licencee to begin with, it is impossible to hold that defendant is liable to pay any damages till the legal notice demanding possession was sent.
27. The legal notice in the present case was issued on CS DJ No. 8299/2016 & CS DJ No. 123/2017 Page 19 of 21 02.01.2015. However, the said legal notice claimed that the defendant was tenant @ Rs.20,000/- per month. The claim was, admittedly, disputed by the defendant vide reply/notice dated 21.01.2015. The gratuitous possession, in my view, never yielded to a tenancy. In any event, the rate of rent being in dispute and defendant raising a defence, which he has failed to prove during trial, the defendant has to pay for the wrongful occupation of the property of the plaintiff, at least, for the period after 21.01.2015 and not before.
28. Unfortunately, the plaintiff has not led any affirmative evidence except for the bald claim that the rate of rent was Rs.20,000/- or that the market rate of rent is now much higher. The defendant has tried to show that some young woman has committed suicide in the said property in the year 2011 and therefore, the property being tainted was not being taken on rent. In any event, I am not concerned with such peculiarity, inasmuch as, the defendant willingly entered the property and started living there. It is not his case that he was paid to stay in the property and that he was doing any favour to the plaintiff by staying in the property. On the day the defendant was asked to vacate, he chose not to and raised a defence which he has failed to prove. Therefore, from the date of the legal notice, his possession can be taken to be that of unauthorized occupant.
29. It is settled law that in the absence of affirmative evidence as well, courts are not precluded from taking judicial notice of the increase in rent of properties in Delhi and that, ordinarily, properties in South Delhi are more expensive both for the purposes of sale as well as renting. Some amount of guess work is also permitted. It is not in dispute that the property comprises of CS DJ No. 8299/2016 & CS DJ No. 123/2017 Page 20 of 21 3 bedrooms and comprises of an area of about 130 Sq. Yards in IGNOU Road, Saidulajab, New Delhi. A three bedroom property in the unauthorized area of South Delhi would have fetched, at least, a rent of Rs.8,000/- in the year 2015. Further, the rents/rate of rents go for onward revision by up to 15% every 3 years. Taking judicial notice of the aforesaid facts, it is directed that the defendant shall be liable to pay damages @ Rs.8,000/- per month for the period 01.02.2015 to 31.01.2018 as pre-litigation and pendente lite damages till the date of handing over of actual possession i.e. 01.08.2024. Thereafter, for every 3 years period of unauthorized occupation by the defendant, the damages shall stand revised by 15%.
30. It is further directed that plaintiff shall also be entitled to interest @ 9% per annum on the damages so calculated on annual basis.
31. Costs of the suit are also awarded to the plaintiff. The counter claim is dismissed.
32. Decree sheet be prepared.
33. File be consigned to Record Room.
Harjyot Digitally signed
by Harjyot Singh
Dictated in the open court Bhalla
Singh Date:
on 30.09.2024 Bhalla 2024.10.03
12:48:12 +0530
HARJYOT SINGH BHALLA
DJ-05, SOUTH SAKET COURTS
NEW DELHI
CS DJ No. 8299/2016 & CS DJ No. 123/2017 Page 21 of 21